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Commonwealth v. Jordan

Superior Court of Pennsylvania

March 27, 2018

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID VASQUEZ JORDAN Appellant

          Appeal from the PCRA Order March 9, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001618-2010

          BEFORE: PANELLA, J., OLSON, J., and STEVENS [*] , P.J.E.

          OPINION

          STEVENS, P.J.E.

         Appellant David Vasquez Jordan appeals pro se from the Order entered in the Court of Common Pleas of Lancaster County on March 9, 2017, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA).[1] We affirm.

         Following a jury trial on March 18, 2011, Appellant was convicted of one count of second-degree murder as a result of a shooting that occurred during an attempted robbery on October 24, 2004. Prior to trial and after conducting a Grazier[2] hearing and referring Appellant for a mental health evaluation to determine his competency to represent himself at trial, the trial court had permitted Appellant to proceed pro se and appointed stand-by counsel. On March 21, 2011, the trial court sentenced Appellant to a term of life in prison without the possibility of parole.

         On March 30, 2011, Appellant filed pro se a purported motion pursuant to the PCRA, and the trial court treated the filing as a direct appeal. Counsel was appointed and filed a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on June 9, 2011. The trial court filed its Rule 1925(a) Opinion on July 1, 2011.

         On August 29, 2011, Appellant filed with this Court an application to proceed pro se, and on September 6, 2011, he filed an application for remand. In response to those motions, this Court remanded the matter to the trial court on October 4, 2011, to enable it to conduct an on-the-record inquiry pursuant to Grazier and to determine whether Appellant's waiver of counsel was knowing, intelligent and voluntary. Following the Grazier hearing on October 31, 2011, the trial court permitted Appellant to proceed pro se. The trial court denied Appellant's appeal, and Appellant filed a timely appeal with this Court. Finding no merit to any of the issues Appellant had raised, this Court affirmed his judgment of sentence on September 3, 2014.

         Appellant filed a petition for allowance of appeal with the Pennsylvania Supreme Court which denied the same on March 17, 2015. Appellant did not seek review in the Supreme Court of the United States; therefore, his judgment of sentence became final on June 17, 2015, after the expiration of the ninety-day period in which he was allowed to seek review in the United States Supreme Court. See U.S.Sup.Ct.R. 13(1) (stating "a petition for a writ of certiorari to review a judgment in any case ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment"); 42 Pa.C.S.A. § 9543(b)(3) (providing that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review).

         Appellant timely filed the instant PCRA petition on March 16, 2016.[3]Counsel was appointed and after a Grazier hearing held on June 28, 2016, the PCRA court granted Appellant's request to represent himself and provided him with additional time in which to amend his PCRA petition on or before September 15, 2016. Appellant filed an amended petition on September 12, 2016, which spans sixty-five handwritten pages and essentially raises numerous challenges to the sufficiency of the evidence presented at trial and an allegation that his Sixth Amendment right to counsel had been violated due to a conflict with trial counsel. After providing Appellant with its notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907, and considering Appellant's response thereto, the PCRA court dismissed the petition on March 9, 2017.

         Appellant filed a timely appeal and after seeking an extension of time in which to do so, he filed a concise statement of matters complained of on appeal on April 24, 2017, wherein he raised eleven issues. In his brief, Appellant presents the following Statement of Questions Involved:

1. Whether the PCRA court erred by not finding a legality claim existed as to [Appellant's] conviction and sentence, and by concluding the issue previously litigated, and by not concluding that [Appellant's] conduct did not violate the statute of 18 Pa.C.S. § 2502(b), because there is insufficient evidence where the prosecution failed to prove that [Appellant] "shared criminal intent" of the Co-Defendant, Edward Major, in a robbery-murder to find Mr. Jordan guilty of second-degree murder beyond a reasonable doubt and because the direct appeal did not turn on the merits of the shared criminal intent element including the instant non-waivable claim?
2. Whether the PCRA court erred by not finding a legality claim existed as to [Appellant's] conviction and sentence, and by concluding the issue previously litigated, and by no concluding that [Appellant's] conduct did not violate the statute of 18 Pa.C.S. § 2502(b), because there is insufficient evidence where the prosecution failed to prove [Appellant] "intended to promote or facilitate the commission of the attempted robbery during which the Decedent was killed" in finding [Appellant] liable for the conduct of the Co-Defendant, Edward Major, to convict [Appellant] of second-degree murder, and because the direct appeal did not turn on this specific element including the instant non-waivable legality claim?

Appellant's Brief at 6.[4]

         When reviewing the denial of a PCRA petition, our standard of review is limited to examining whether the PCRA court's determination is supported by evidence of record and whether it is free of legal error. Commonwealth v.Smallwoo ...


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